Introduction
This paper takes a look at a South African case that presented certain constitutional matters to the court for determination. Among them are equity, equality, and unfair discrimination. The paper, therefore, seeks to summarize the case and analyze the important issues that arose therefrom.
The National Commissioner wished to fill the non-reserved post of a superintendent, prompting an advert placement in December 2005. Ms. Barnard was among the 7 applicants who wished to fill the position. Although she was the highest-ranking candidate after the interview, she did not receive the promotion position. Eight candidates, including Ms. Barnard, were selected for an interview to fill a level 9 position that was announced vacant.
Again, she ranked highest during the interviews and was highly recommended for the position by the interviewing panel. For the second time, even after glowing recommendations from various quarters, the National Commissioner declined to appoint her, stating representativity as one of his primary considerations. The post was, therefore, re-advertised, but Ms. Barnard did not apply again. She filed a complaint following the Police Service procedure on the same, asking to be appointed to the last post that she had applied for, and she received a letter setting down the reasons for not selecting her. The letter once again mentioned the issue of representativity as having been key in informing the National Commissioner’s decision.
The CCMA received a dispute regarding the discrimination issue on April 11, 2007, but the police service disobeyed an order to present itself in the meeting. She finally resorted to courtroom litigation. She contended that she had been unfairly discriminated against on the grounds of race and that she should be appointed retrospectively to the position of the superintendent as from 1 December 2005. The police service argued that the National Commissioner had been justified in his decision because he was following the Employment Equity Plan and that since making appointments was his prerogative, he was not bound by the recommendation of the panel. The Labour Court upheld her claim, stating that the reasons given by the National Commissioner were scant and insufficient. Upon appeal, the Labour Appeal Court upheld the appeal stating that no discrimination had occurred because the National Commissioner had not filled the vacancy with another candidate. The Supreme Court of Appeal, on the other hand, reinstated the decision of the Labour Court stating that Ms. Barnard was entitled to compensation.
Comments of the Judges on Applicable Law
The South African Constitution, in as much as it pursues equality and discourages discrimination, does not aim for mere formal equality because the country has had a history that was marred by racial injustices. It, therefore, calls upon the citizens of the country to take positive steps to secure the substantive equality that is envisioned. The achievement of equality is, therefore, a delicate balance that looks out for the needs of those that were previously disadvantaged while at the same time not unduly invading the human dignity of those that are affected by them. Essentially, the historical discriminatory problems could only be resolved by affirmative action which has been said to be a means to an end and not an end in itself. This end is the creation of an appropriate environment that will allow the addressing of social, political, and economic inequalities in the long term (Kennedy-Dubourdieu, 2006).
The Employment Equity Act, which is one of the legislations that the applicant sought to rely on, has the objective of eliminating unfair discrimination at the workplace to redress the adverse effects that were brought about by past discrimination. It does so by first and foremost requiring designated employers to take affirmative action. The police service has the mandate of bringing equality in the various groups by hiring qualified employees in those segments in an unbiased manner. Other policies that regulate the way police service promotions should be handled include the National Instruction issued by the National Commissioner in 2004 and the Employment Equity Plan, which was a collective agreement adopted in 2001.
The decision of the Supreme Court of Appeal was, therefore, centered on these laws, policies, and principles. The court recognized that the transformation that was envisioned in the Constitution was a process that could at times be faced with profound difficulties. The court remained conscious of the fact that some people would not escape the consequences of attempting to safeguard equality. The most affected persons would be those who enjoyed an advantage in society previously. This was evident from Ms. Barnard’s case because she had been denied the promotion simply because she was white and consequently belonged to a previously advantaged group.
It stated that although the race was one of the factors along, which many people were discriminated against in the past, there was a danger in focusing too much on remedying it, and this could lead to a situation where not only those that have not been selected for a position are disadvantaged, but also those that were chosen. It is for this reason that the court also stated that in implementing the provisions of affirmative action and equality, persons should be keen to ensure that the measures that are adopted to reach this goal are constitutionally compliant. Ideally, the objective should not only be to adopt affirmative action measures but also to ensure that these steps amount to fair action. The court stated that the vision of the country should be towards a time when the country shall look beyond race.
Judge Van der Westhuizen, in addressing the same issue, drew parallels from the attempts that the United States had made in dealing with the historical injustice of slavery using affirmative action. He highlights the problems that arose there, from which were identified by even those whose interests the affirmative action measures were meant to serve. He mainly referred to Professor Stephen Carter, who despite being one of the so-called “affirmative action babies” was nonetheless dissatisfied with the fact that he had been able to join law school simply because he was black. Even though he asserted that representativity was not the only factor that needed to be considered in making decisions of this nature, he was also of the opinion that the appeal should succeed because the decision of the National Commissioner was not unlawful.
Analysis and Conclusion
Affirmative action is a measure that is usually taken to remedy the unfairness and injustice that a particular group of people in the society have had to contend with which has led to them not receiving benefits that they would have otherwise been entitled to (O’ Cinneide, n.d). The adoption of such measures has been justified on the grounds of subtle forms of discrimination where there is the apparent application of neutral criteria of selection of individuals for a particular position, which criteria inherently yields disadvantageous results for a particular group (O’ Cinneide, n.d). Drawing from the experience that the United States has had with Affirmative action, it is noteworthy that these measures do not always yield the results that they are intended to or rather, are limited in their outcomes. It has been argued that affirmative action only serves to diversify the subjects of a job but cannot go further to ascertain whether or not they will be efficient in doing that job (Thomas, 1990).
Quintessentially, it is therefore of utmost importance that the employers who opt to adopt these measures strike a much-needed balance between just diversifying the workforce and ensuring that they are not merely blocking out more qualified applicants to achieve this end. The United States has adopted the ‘strict scrutiny’ test to aid it in coming to this desired end. In essence, this test provides that there must be compelling government interest in achieving the aim of the preferential measure adopted and further, that this preferential measure is as narrowly tailored as possible. The lesson that is drawn from this is that because affirmative action seeks to treat one group of persons more favorably than others, there is a need to ensure that the use of such preferential treatment is minimal and necessary to avoid tilting the scales unfavorably with regards to another group of persons.
In conclusion, Ms. Barnard’s case was important because it brought certain truths to light. The first is that, where the Constitution provides that everyone should be treated equally and advances the use of affirmative action measures, it is not enough that these measures are blindly adopted but also, it is beneficial to ensure that how these measures are adopted is fair and just to all groups involved. Secondly, albeit it is important to ensure that all groups in society are represented in a specified labor force, this should not be achieved at the expense of service delivery because that would render the adoption of these measures counterproductive.
References
Kennedy-Dubourdieu, E. (2006). Race and inequality: world perspectives on affirmative action. Farnham, UK: Ashgate Publishing Ltd.
O’Cinneide, C., (n.d.). Positive Action. Web.
South African Police Service v Solidarity obo Barnard [2014] ZACC 23.
Thomas, R. R. (1990). From affirmative action to affirming diversity. Harvard Business Review. Web.